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Lee et al. v. Moran Foods

October 18, 2012

LEE ET AL.
v.
MORAN FOODS, INC. ET AL.



Name of Assigned Judge Harry D. Leinenweber Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Defendants motion for summary judgment [23] is granted in its entirety.

O[ For further details see text below.] Docketing to mail notices.

Mailed AO 450 form.

STATEMENT

Before the Court is Defendants' motion for summary judgment. For the following reasons, the motion is granted in its entirety.

Ladonna Lee ("Ladonna") and her then-7-year-old daughter, Carlonna Lee ("Carlonna"), entered SAVE-A-LOT grocery store ("Moran") at 420 South Pulaski Road in Chicago on August 6, 2009 sometime after 9 p.m. but before 10:30 p.m. Both went into the ladies bathroom so that Ladonna could use the toilet. The bathrooms were open to customers, who were free to enter and leave without a key. As Ladonna used the toilet, Carlonna washed her hands in the nearby sink. Carlonna testified that before using the sink, she noticed that the back of the sink had separated from the wall by approximately the length of a pen. After she turned the water off, the sink fell forward further. Carlonna was struck in the chest by the sink, but managed to hold up the sink as it pushed her back. Ladonna saw the sink fall forward and jumped up from the toilet to help her daughter. Ladonna grabbed the sink from the front and pushed her daughter out of harms way with her hips. Ladonna testified she then lowered the sink to the ground. Ladonna and Carlonna testified they had not noticed or heard of any problems with the sink prior to their use of the bathroom that day, nor did they hear any employees mention there had been problems with the sink prior to this incident.

Exhibits and testimony from store manager Anthony Brunson show that the store has a two-hour "floor sweep" policy, which means floors are swept and a log recording the times of sweeps is made. The store policy is that floor sweeps include inspection and cleanup of the bathrooms. Employees are to flush the toilet and test the sink faucet to make sure both are working properly. Employees are also supposed to wipe down the sink. A "clean sweeps" log from that week indicates the store sweep and inspection was completed at 6:07 p.m., 8:05 p.m. and 10:00 p.m. that night. The log indicates that Brunson himself performed the 6:07 p.m. inspection and also signed off as manager. Employee Emanuel Leeks (who is now deceased and was not deposed) performed the next two sweeps and Brunson signed off on them. Brunson testified he does not remember the sink being separated from the wall during his inspection ending at 6:07 p.m. He was called to inspect the sink after the incident and said the sink was not on the ground, but was merely leaning away from the wall by about a foot or foot and a half. Brunson testified he had not heard of any problems with that sink prior to the incident, or heard of any repairs being done to the sink before the incident.

I. BACKGROUND

After the incident, Ladonna and her daughter did their shopping and left. Carlonna reports she sometimes now has chest pain with vigorous activity and Ladonna reports continuing back pain for which she has received moderately extensive treatment. They sue on a theory of premises liability (one count for each plaintiff) against Moran Foods, Inc. of Missouri, doing business as SAVE-A-LOT. Plaintiffs have agreed to drop any claims against Supervalu, Inc. Defendant Moran moves for summary judgment.

II. LEGAL STANDARD

Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Windle v. City of Marion, 321 F.3d 658, 660-661 (7th Cir. 2003).

In a motion for summary judgment, Local Rule 56.1(b)(3)(B) requires that a party opposing summary judgment, if it disagrees with a movant's statement of fact, deny those facts in a numbered response with "specific references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(B). The local rule also requires that any additional facts establishing denial of summary judgment are required to be put forth by the non-movant in "a statement, consisting of short numbered paragraphs" and include "references to the affidavits, parts of the record, and other supporting materials relied upon." L.R. 56.1(b)(3)(C). The rule is not a "mere formality" and the Court is entitled to ...


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